Retaliation

There’s a saying that “Bad facts make bad law.” At least that’s the way I was taught it. A different version: “Hard cases make bad law” has its own Wikipedia entry. While the wording is different, the meaning is the same. When the facts are extreme, they serve as a poor basis for defining general legal principles.

Here are the bad facts:

A dairy hired an employee even though it knew he was not authorized to work in the US. When he told them after two years that he had a better offer from another dairy, his employer threatened that, if he left, it would report the other dairy to federal immigration authorities. So he stayed.

Nine years later, he sued his employer for a variety of workplace violations, including failure to pay overtime or to provide meal and rest breaks. Ten weeks before the case is going to trial, the employer’s lawyer schedules a deposition of the plaintiff but arranges to have US Immigration and Customs Enforcement (ICE) take him into custody and deport him. There’s even an e-mail from the lawyer to ICE letting them know the employee “will be attending a deposition next week. If there’s an interest in apprehending him, please let me know so that we can make the necessary arrangements…” Apparently, the employee got wind of the plan and agreed to settle his case. To make matters worse, the lawyer had used this ploy on at least five other plaintiffs who were suing his clients.

The plaintiff then sued the attorney for retaliation under the Fair Labor Standards Act. He chose that statute because it allows such claims against “any person acting directly or indirectly in the interest of an employer in relation to an employee.” The federal district court dismissed the claim because the lawyer did not exercise any control over the plaintiff’s employment. However, the 9th Circuit Court of Appeal reversed. In doing so, it rejected the need for any economic control. It said that, while only employers can be responsible for not paying employees correctly, anyone acting on behalf of the employer can be liable for retaliation.

What the lawyer did was wrong. There are ethical rules that state that an attorney in California “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” Lawyers who violate that rule or otherwise abuse their power, can be sanctioned, suspended, and even disbarred. There are also civil claims available for abuse of process and malicious prosecution. So there are penalties for this type of behavior already. However, giving plaintiff’s the right to sue their employer’s lawyers for retaliation will lead to far more problems than it will solve. Litigation is inherently contentious. Parties tend to dislike the lawyer on the other side. But in every other situation I know of, courts have ruled that there’s no right to sue the other side’s lawyer and that allowing such suits will lead to a multiplicity of litigation. The Ninth Circuit, dealing with an extreme situation, held otherwise. Like the saying goes, bad facts make bad law.

I was recently invited to contribute a chapter on employment law to the 2017 Israel Desk International Legal Guide. As more and more Israeli companies bring their operations to the U.S., they learn firsthand the intricacies of our employment laws. The chapter outlines six trends that I suggested that they pay attention to. They include wage and hour laws, equal pay, accommodating disabled workers, whistleblower claims, local regulations, and trade secrets.

On the topic of trade secrets, I had the opportunity to give a presentation in Tel Aviv last month on Protecting Your Trade Secrets in Silicon Valley and Beyond to members of IATI (Israel Advanced Technology Industries – an industry group for high-tech and life science companies). You can read my chapter on legal trends and see a copy of my presentation on trade secrets.

Fox Rothschild LLP’s Israel Practice Group is adept at helping companies based in Israel with their U.S. legal needs.

The Equal Employment Opportunity Commission issued its new “Enforcement Guidance on Retaliation and Related Issues” on On August 25, 2016. Careful readers will be able to deduce from the section titled “Expansive Definition” that the EEOC uses an expansive definition of what constitutes protected activity. This activity is “protected” in the sense that any adverse action taken against someone for engaging in it is, by definition, retaliatory.

The EEOC Enforcement Guidance lists the following types of protected activity:

Complaining about discrimination against oneself or others – This is the prototypical protected activity.

Threatening to complain about discrimination against oneself or others

Providing information in an employer’s investigation of discrimination or harassment

Refusing to obey an order reasonably believed to be discriminatory

“Passive resistance” – The EEOC gives the example here of a supervisor refusing a request to dissuade subordinates from filing EEO complaints. Apparently, the refusal doesn’t need to be articulated. Just not acting on the request is considered protected.

Resisting harassing behavior – The EEOC gives the example of an employee telling a supervisor to “leave me alone” and “stop it.” The fact that it’s a supervisor seems important here because the supervisor’s knowledge is imputed to the employer.

Intervening to protect others from harassing behavior – Again, the EEOC example involves a co-worker intervening to stop harassment by a supervisor.

Requesting accommodation for a disability or religion

Complaining that pay practices are discriminatory – There doesn’t need to be an explicit reference to discrimination. If a woman says her pay is unfair and asks what men in the job are being paid, the EEOC deems that protected.

With minimal public commentary, the Department of Fair Employment and Housing has passed new regulations broadening and strengthening the Fair Employment and Housing Act. While it’s too late to (officially) complain about them, here’s why you should care:

A) The new regulations significantly expand who is protected under FEHA.

First, the definition of “employer” is expanded so that smaller employers with fewer than five employees who utilize outside contractors, interns or even unpaid volunteers must comply with the Act. Second, it formalizes protection under the Act for non-employees in the workplace such as unpaid interns and volunteers. Third, it expands pregnancy-related protections to transgender individuals by eliminating the word “woman” from the rules.

Existing regulations limit employer recording keeping to basics like the name and date of the training. However, now employers need to keep copies of all materials utilized by the trainer including written slides, materials, attendance sheets, questions submitted during the seminar or webinar, and responses given by the trainer. All records must be kept for two years.

C) The new regulations enhance employer notice requirements.

Though the regulations stop one step short of requiring employers to actually accompany an employee to the DFEH to file a claim, they place extra burdens on employers to notify employees of their rights. In addition to handing out pamphlet DFEH-185 on sexual harassment, employers need to proactively provide a copy of their anti-harassment policy via hard copy, e-mail or intranet. Further employers must ensure employees understand and affirmatively acknowledge receipt of such policies. Employers must also translate such policies into all languages that are spoken by 10 percent or more of their workforce.

D) The new regulations require more from employer policies. Specifically, employers must develop a harassment, discrimination, and retaliation prevention policy that:

(1) Is in writing.

(2) Lists all current protected categories covered under the Act.

(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act.

(4) Creates a complaint process to ensure that complaints receive: confidentiality to the extent possible; a timely response; impartial and timely investigations by qualified personnel; documentation and tracking for reasonable progress; appropriate options for remedial actions and resolutions; and timely closures.

(5) Provides a complaint mechanism that doesn’t require an employee to complain directly to his or her immediate supervisor, including an alternate reporting structure, a complaint hotline, or access to an ombudsperson.

(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.

(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

(8) States that the employer will keep the investigation confidential to the extent possible, but does not promise complete confidentiality.

(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.

(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

As a result of these new obligations, employers should review their harassment, retaliation and training policies to ensure compliance with the regulations. As always, my colleagues and I are available to answer any questions.

The Equal Employment Opportunity Commission reports that, in fiscal year 2015, 44.5% of the charges it received alleged retaliation. That makes retaliation the most popular charge it received by a large margin. Previous statistics showed that retaliation claims were even more popular at the Department of Fair Employment and Housing – the EEOC’s California counterpart.

Having heard nothing further on the issue, I wrote an e-mail to the DIR at AB1522@dir.ca.gov. According to the response I received last week, the agency is sticking to its guns. They say in their response that, since there’s nothing explicitly allowing employers to ask for doctors’ notes, conditioning the leave on the employee providing one “can arguably interfere with the employee’s use of paid sick leave….” The DIR says that it will analyze whether denying leave for failure to provide a note constitutes retaliation “according to the unique facts of the case.”

As I’ve said before, if paid sick leave is intended to provide a benefit for employees who validly need it, prohibiting doctors’ notes is ridiculous. If, instead, the law is intended as another way to subject well-meaning employers to expensive lawsuits and agency enforcement actions, then it makes perfect sense.

I still believe that the risk of an interference or retaliation claim from asking for a doctor’s note is less than the risk of employees abusing this leave to get three extra paid days off per year. However, the law remains unclear on this point, with nothing but a somewhat equivocal agency interpretation to go on. We’ll continue to watch this issue.

I was recently reviewing the Department of Fair Employment and Housing’s Annual Report (don’t you wish you were me?), and saw that the DFEH received 17,632 complaints of employment discrimination in 2014. Of those, 12,344 (70%) alleged retaliation. Why is retaliation such a popular claim?

Some of it involves the way people perceive their interactions. An employee who has complained about discrimination will likely be vigilant in watching for some sort of adverse treatment. Any perceived slight, real or imagined, can give rise to a retaliation complaint. On the other side of the coin, someone who has been accused of discrimination or harassment may greatly resent having their professionalism and integrity attacked and find it very difficult to treat the accuser as if nothing happened.

If an employee raises an issue, make sure that the complaining employee and the accused understand the policy against retaliation and when and how to report concerns. The accused may well want to avoid the accuser completely, but that can give rise to a claim, too. Encourage the accused to seek guidance from HR if he or she has questions about workplace interactions going forward.

Avoid any changes in the complaining party’s duties, compensation, benefits, title, or anything else that can be characterized as an adverse action, especially during the period right after the employee complains.

Monitor the situation closely. Have a senior manager periodically follow up with the complaining party. This is not passing the person in the hall and asking “How’s it going?” This is private, closed-door conversation in which the complaining party is encouraged to discuss any ongoing concerns, with periodic follow-up.

For years, employers settling with former employees have included a clause saying that the employee would never reapply and was not eligible for rehire. The rationale is obvious. After litigating, sometimes for years, no employer wants to bring the employee back and potentially start the process over.

However, there was never clear authority saying those clauses were permissible. They could arguably be retaliatory. I’m refusing to rehire you because you sued me. Protected activity, adverse action, causal connection – the elements of a retaliation claim.

Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

In Golden v. California Emergency Physicians Medical Group, et al., a doctor refused to finalize a settlement containing a no-rehire clause. He argued that his former employer (CEP) was a major player in his field with plans to grow by acquiring other practices. As written, the provision would not only preclude him from applying to practices affiliated with CEP, but to resign from practices with no such affiliation if CEP later acquired them.

Two judges on the panel concluded that the settlement agreement was a contract restraining plaintiff from engaging in a lawful profession, trade, or business. They decided to send the case back to the trial court to decide if the restraint was “substantial.” A dissenting judge thought the clause was permissible and, if it was later used for improper ends, should be challenged at that time. So more guidance may be forthcoming.

Here’s your “takeaway”: The law is still developing here. More risk-averse employers may want to avoid no-rehire clauses for the time being. Sometimes, however, litigation creates so much antagonism, that the employer may find the risk of the clause being held unlawful to be more attractive than the risk of having to potentially rehire the person. After all, rehiring someone who’s already sued you is fraught with its own risks.

I will keep what you tell me completely confidential. No you won’t. You’ll keep it as confidential as circumstances allow. You’ll only disclose information on a need-to-know basis. But you can’t conduct an effective investigation without telling the accused what the complainant said and vice versa.

I’m really busy now. Can we talk about this in a couple days? A good plaintiff’s attorney will hang you with a comment like that. You might as well say, “Preventing harassment isn’t really a big priority for this organization.”

Because of privacy concerns, I can’t tell you what steps we’re taking. You should inform the complaining witness of what steps you’re taking throughout the investigation. They have a right to know. Also, you don’t want them concluding that they need to go talk to a lawyer to get the company’s attention.

To protect you from retaliation, we’ll move you to this different department/shift/location. That’s not protecting someone from retaliation. That IS retaliation.

It’s “he said/she said,” so we can’t do anything. Most harassment complaints involve one person’s word against another. That doesn’t absolve the company of its duty to weigh the facts and make a conclusion.

I’ll do the investigation myself. How hard can it be? When you see a giant harassment verdict, it usually has more to do with what the employer did in response to the complaint than what the accused harasser did. If the complaining witness brings a claim, every step of the investigation will be scrutinized. That’s why a prompt, fair, thorough investigation is the best way for an employer to protect itself once issues arise.

As an employment litigator and the co-chair of my firm’s Women’s Initiative, I have been particularly interested in the press surrounding the claims brought by Ellen Pao against her former employer. As explained in a prior post, Pao claimed that she was harassed by male colleagues, and when she complained about that harassment to Human Resources, was retaliated against and ultimately terminated. She brought claims of sex discrimination and retaliation, and a San Francisco jury vindicated the employer and dismissed her claims.

This saga illuminated several of the themes that I often address with clients when conducting harassment prevention training.

First, to be unlawful, conduct must be “severe or pervasive,” unwelcome, based on sex, and have an adverse impact on the work environment. As of this year, harassment prevention training must cover abusive conduct aka “bullying” (defined as conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests). Put simply, just because the conduct isn’t unlawful, doesn’t make it right.

Second, retaliation claims are very easy to bring and very hard to defend. While the employer here was ultimately successful, keep in mind that it took a 24 day jury trial for that vindication. Quite often retaliation claims are fact intensive and not susceptible to summary judgment or prompt resolution.

Third, even if harassment claims fail, it is quite possible for a retaliation claim based on a meritless harassment claim to succeed. And unfortunately, many managers do retaliate against employees who complain, albeit sometimes inadvertently. In my training, I always include examples of a manager who was frustrated with an employee who complained about something, and takes actions that could be construed as retaliatory (such as ignoring pleas for help, letting others give the complaining employee a hard time, and/or directing opportunities elsewhere). Managers need to be trained to not only avoid retaliation, but also the appearance of retaliation.

Fourth, defending a harassment, discrimination, or retaliation claim can be a very high hurdle for employers, who need to essentially justify their actions by picking apart the plaintiff’s behavior. That requires a very delicate balance. In reviewing how Pao was expertly cross-examined, I cheered for the female attorney who scored such good points for her client. At the same time I was saddened for women who honestly believe they are stepping up to expose institutional problems that others are too afraid to raise.

And finally, the press accounts of the Pao trial indicate that there is unconscious bias in the workplace. Semantics matters, such as referring to a woman as someone with “sharp elbows” – would anyone refer to a man that way?

All in all, there are lessons here for everyone. Let’s just hope employers (and employees), female (and male), take a minute to digest them.

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